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Prohibited Personnel Practice of the Month - October 2011

PROHIBITED PERSONNEL PRACTICE OF THE MONTH

Number 2

Proper considerations in making personnel decisions

Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority—
(2) solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action unless such recommendation or statement is based on the personal knowledge or records of the person furnishing it and consists of--

(A) an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or

(B) an evaluation of the character, loyalty, or suitability of such individual.

Proper considerations in making personnel decisions - hat does this provision address?
This provision is found at 5 U.S.C. § 2302(b).  Along with all of the other prohibited personnel practices, except number 11, this provision came from the Civil Service Reform Act of 1978, Pub. L. No. 95‑454, 92 Stat. 1111.  The legislative history concerning section 2302(b)(2) indicates that the section was intended to prevent the use of political influence to obtain a position or promotion in the federal government.  The pertinent Senate Report explains that this provision: “restates and expands 5 U.S.C. § 3303, which currently prohibits consideration of recommendations submitted by senators and representatives, except as to character or residence.  The paragraph adds a prohibition against soliciting any such recommendation.  An exception is made for recommendations based on personal knowledge or personal records, where it consists of an evaluation of work performance, ability, aptitude, character, loyalty, or suitability.”  S. Rep. No. 969, 95th Cong.; 2d Sess. 20 (1978), U.S.Code Cong. & Admin.News 1978, 2723, 2743. 

Will the Merit Systems Protection Board (MSPB or the Board) hear a claim that the agency violated this provision?
Under 5 U.S.C. § 7701(c)(2)(B), MSPB may not sustain a personnel action “based on” a prohibited personnel practice.  Generally, a prohibited personnel practice may be raised as an affirmative defense in an otherwise appealable action in an appeal filed with MSPB.  An otherwise appealable action is a personnel action that can be appealed to MSPB on its own, which means that MSPB has jurisdiction in the case.  

As with the other prohibited personnel practices, if you file a claim with MSPB in connection with an otherwise appealable action, we will hear your claim that you believe this provision was violated, but only if it is related to your claims about the underlying personnel action being appealed.  Such claims will not be heard if your appeal is filed under the Veterans Employment Opportunities Act of 1998 (violation of veterans’ preference rights), the Uniformed Services Employment and Reemployment Rights Act of 1994 (discrimination based on military service), or the Whistleblower Protection Act (individual right of action appeals based on retaliation for making protected disclosures), as such appeals are not filed under MSPB’s otherwise appealable action authority, but rather specific subject-matter based statutory authorities. 

Who has the burden of proving a claim under this section?
If raised in an otherwise appealable action appeal, it is raised as an affirmative defense.  Under MSPB’s regulations, the appellant bears the burden of proving all affirmative defenses.  That burden is by preponderant evidence which means that degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.  The MSPB’s regulations can be found in section 1201 of title 5 of the Code of Federal Regulations, which can be accessed through our website under “Rules and Regulations.”

Does this provision mean that an agency cannot interview employees who witness or are involved in an incident leading to discipline?
The MSPB and the U.S. Court of Appeals for the Federal Circuit, which is authorized to review all Board decisions not involving issues of discrimination, have held that this provision does not apply to situations where an agency takes statements from persons who are somehow involved in the incident giving rise to the disciplinary proceeding, but rather relates to statements or recommendations by outsiders, such as senators or congressmen.  The court noted that the legislative objective was to forestall political or partisan interference in personnel actions.  Depte v. United States, 715 F.2d 1481 (Fed.Cir.1983), overruled on other grounds by Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, n.4 (Fed. Cir. 1999).  The Board has also held that a deciding official did not violate section 2302(b)(2) where he was not an eyewitness to the charged events and relied upon the statements of others in making the decision to remove an employee.  Giltner v. Department of Air Force, 50 M.S.P.R. 209, n.1 (1986).

Does this mean that a management official cannot ask a labor relations specialist for advice in taking a disciplinary action against an employee?
In Gonzales v. Defense Logistics Agency, 772 F.2d 887, 892 (Fed. Cir. 1985), the court stated that “[t]here is no prohibition against a decision-maker calling for advice from those who are not in an adversarial position with the offending employee.”  See also Boudreau v. Department of Agriculture, 883 F.2d 1023 (Fed. Cir. 1987)(Table)(non-precedential).  In Boudreau, the court held the agency did not violate 5 U.S.C. § 2302(b)(2) by seeking advice from an employee relations specialist in the taking of a personnel action, where that individual was not in an adversarial position with the employee being disciplined.  These cases were issued prior to the court’s decision in Stone, cited above, dealing with the issue of ex parte communications by a deciding official.  Any such discussions would have to comply with the dictates of due process, as required by Stone, that no disciplinary action be taken based on new and material evidence that is not provided to the employee so that the employee has an opportunity to respond. 

Can an agency ask for recommendations from a prior supervisor when an applicant applies for a position or a promotion?
Yes.  Section 2302(b)(2) prohibits solicitation or consideration of recommendations based on political considerations, and was intended to prevent the use of improper influence to obtain a position or promotion; recommendations for competitive positions must be based upon personal knowledge and an evaluation of the performance, ability, character and suitability of the individual involved.  Acting Special Counsel v. Sullivan, 6 M.S.P.R. 526 (1981). 

How does this provision relate to the prohibition against ex parte communications?
Section 2302(b)(2) should not be confused with the prohibition against ex parte communications in disciplinary personnel actions; they are distinctly different.  An ex parte communication to a deciding official is a communication, without the knowledge of, and opportunity to respond by, the employee being disciplined and it has the effect of denying him the due process to which he is entitled under the Constitution. Sullivan v. Department of the Navy, 720 F.2d 1266, 107-74 (Fed. Cir. 1983).

In contrast, Section 2302(b)(2) allows for certain communications that relate to an evaluation of  work performance, ability, aptitude, or general qualifications of an individual or an evaluation of the character, loyalty, or suitability of an individual when the employee is under consideration for a personnel action.  In disciplinary action cases, the prohibition against ex parte communications would prevent these communications in most instances, where the information is not otherwise known, or made known, to the employee prior to making a decision to effect a disciplinary action. 

If an employee discloses what he believes is a violation of 5 U.S.C. § 2302(b)(2), can it form the basis of a protected whistleblowing disclosure?
Yes.  The Board has held that allegations of violations of 5 U.S.C. § 2302(b)(2) and related provisions of law can sometimes constitute whistleblowing.  See McDonnell v. Department of Agriculture, 108 M.S.P.R. 443, ¶¶ 9-13 (2008); see also Baldwin v. Department of Veterans Affairs, 113 M.S.P.R. 469 (2010).